is so fundamentally challenging, our entire economy, and government has no choice but to -- to reflect that reality and it will. we have been through this, i don't think we have ever been through it at this scale, but we have been through this before, our democracy, our democracy was created in an agrarian society and it survived and thrived and i would argue improved upon itself for democracy as we go into a industrial society. and we are at that same kind of inflexion point today between an industrial economy and maybe an information economy or however you want to phrase it, that creates an amazing opportunity to not just survive as a democracy, but to create a more perfect union. >> i believe that the cybersecurity agenda in general, this is super important agenda that need to be pushed. and the reason is that cybersecurity is not a problem that it was hyped in technology

and this it will be gone. cybersecurity is a problem that is here to stay. >> watch the communicators monday night at 8:00 eastern on c-span2. three ninth circuit court judge s testified on capitol hil on whether the ninth circuit, the largest in the country, should be split. all three said no, they explained why in this two-hour hearing. the subcommittee on courts intellectual property and the internet will come to order. the chair is authorized to declare a recess at anytime. we welcome everyone today to today's hearing examining ideas for restructuring the 9th circuit.

i recognize myself for a short opening statement. it has been more than a decade since we last considered a bill to, if you will, split the 9th circuit. the 9th circuit is the largest circuit of the 12. additionally the 9th circuit hears 20% of the appeals and some would say from this side of the dais, throughout the various states, that it is also the most reversed circuit. not withstanding that, it is my circuit. it includes my state. i am deeply concerned today and will be until we find resolution that stripping away the other states of the 9th circuit would still leave california as, by

far, the largest circuit. so when we come together today we come together with two challenges. one, that there is no way without splitting a state to have at current california not be, if it were all by itself, the largest circuit. secondly, we have wrestled with this for decades. during that time the 9th circuit has grown and today with four vacancies there is five more requested. if all were granted the 9th circuit would be 34 judges. we are honored to have some of those judges with us today. i am here to say i am pleased to see that the 5th circuit in 1980 splitting was done in less than a year, no ill effects and passed the house and senate by unanimous consent. i hope today to have the same

result to whatever we propose. i now, it is my pleasure to recognize the ranking member of the full committee, mr. conyers. >> thank you, mr. chairman. members of the committee, today's hearing provides an important opportunity to examine whether the 9th circuit court of appeals is able to adequately perform its duties as it is currently structured. the hearing takes on an added importance in the wake of a series of decisions in the 9th circuit and elsewhere overturning president trump's muslim refugee ban. instead of coming to terms with the legal flaws with his own executive order, president trump has chosen to attack the 9th

circuit which he has said is in chaos and frankly in turmoil. those are quotes. last night after learning of the hawaii court's decision again rejecting his ban, he said people are screaming to break up the 9th circuit. you have to see how many times they have been overturned with their terrible decisions, end quotation. of course, none of what the president is charged about the 9th circuit is true. the 9th circuit is as well organized as any in the country. the very few 9th circuit cases the supreme court takes up, a significant portion are overturned. that's true for every circuit,

several of which are overturned at a higher rate than the 9th circuit. overall less than one-10th of 1% of the 9th circuit decisions are overturned by the supreme court. the reality is this is not a new debate president trump has brought us to. it is one that we have had for decades. although i will not speculate why there continues to be such an interest by some of my conservative colleagues to divide the 9th circuit there are several points we should keep in mind. to begin with, splitting the 9th circuit would not bring justice closer to the people. instead, it would likely result in further delay, reduced access

to justice and wasted taxpayer dollars. if the 9th circuit were divided there would not be sufficient judicial resources particularly with respect to addressing the significant case load demands of the district and bankruptcy courts. although proposals introduced this congress take differing approaches to dividing the 9th circuit and creating a new 12th circuit inevitably all of these have one common problem. such restructuring would result in a significant financial cost to american taxpayers because millions of dollars would be needed to construct the new circuit headquarters and for

other costs. another concern i have is that splitting the 9th circuit would do little to improve judicial efficiency and none of the legislative proposals would actually resolve the heavy case load problem because the clear majority of the 9th circuit cases come from california. any circuit that includes all of california will still have the largest number of judges and appeals and serve the largest population. finally, i am particularly skeptical of any legislative proposal intended that certain entities those oppose or question the need for such a legislative fix.

dividing the 9th circuit is opposed by a majority of the judges in that circuit as well as by the bar including the american bar association itself. in fact, the white commission which congress established the issue concluded in 1998 that splitting the circuit was impractical and unnecessary. so i ask my colleagues to very carefully listen to the witnesses today and join me in opposition to dividing the 9th circuit. >> i thank you. with that we recognize the chairman of the full committee for his opening statement. >> thank you, mr. chairman. this morning the subcommittee will hear testimony on the long standing issue of the vastly large 9th circuit court of appeals.

for the past several decades the size of the circuit has continued to grow far in excess of other circuits. 20% of the u.s. population now resides in this circuit with nine states and two territories making it twice the size of any other circuit. today the 9th circuit has 29 authorized judgeships far exceeding the 5th with only 17 judges. the judicial conference has asked for five additional judge ships for the 9th circuit and more requests may be coming this summer. as noted by justices kennedy and thomas in their 2005 testimony before the house appropriations committee judicial collegiality is an important component for consistent rule of law. oversized circuits wherever they may be located under cut such by limiting the interactions of the entire circuit as a collective whole.

in our creation of the court system congress envisioned an appellate system that limited the initial panel to a subset of the whole circuit followed by the circuit sitting as a whole hearing any further appeals. it is unfortunate that a prior congress authorize the 9th circuit to operate with 11 judge on bank panels. that masquerade as true on bank panels. this resulted in a important component of our appellate system being lost. though it has procedures to use true on bank panels, they have never done so, despite some of the critical cases they have handled. this committee and in 1908 enacted legislation to move three of its six states to a new 11th circuit and provided only a year of transition time. i highlight the fact that the legislation passed in both the house and senate by unanimous consent, the transition required by that bill occurred smoothly.

various groups have studied the size of the ninth circuit, and the white commission recommend had the ninth circuit not be formally split, but instead, divided into three adjudicative divisions. whatever you think of the commission or the recommendations, it, too, recognized the need to do something about the ninth circuit by splitting into three divisions to resolve the intradivision splits. there is not a huge leap to divide it into three adjudicative districts, and for those who argue against the split by saying that the size creates efficiencies, i would point out that no one has suggested combining other circuits to make them bigger. as this committee moves forward on the legislation addressing issues facing the federal court s this year, i look forward to addressing the ninth circuit in addition to other issues. thank you, mr. chairman, i yield back.

>> i thank the chairman. i am sorry. we recognize the gentleman from new york, the chairman of the ranking member of the subcommittee mr. nadler for his opening statement. >> thank you, mr. chairman. mr. chairman, proposals to split up the ninth circuit court of ap appeals have been floated since 1941 at least. while it was a bad idea at the time of the pearl harbor, it remains a bad idea today. proponents of splitting up the ninth circuit usually match the arguments with concern over the size, and the detrimental effect on the judiciary, and that it is so large that there is administrative waste, and procedural delays and the judges

cannot work together to produce a rational jurisprudence, but however, the facts say otherwise. it is true that the ninth is the largest of the 11 circuit courts of appeal with the caseload and the area covered and the last contains alaska and gaum and marianna islands, it is true that they have to travel, and yet we have planes that can minimize the disruption that any physical distance can cause. with california as the anchor state in the circuit, unavoidable to cover a large population. unless you split the state in half which is disastrous in the point of the judicial coherence, the large circuit is just a fact of life. but no evidence that the size has impeded the ability to administer justice to the people

within the jurisdiction. to extent the of a higher backlog of cases compared to other circuits, more resources can be assigned to help that. and just yesterday, there was a are recommended adding an additional five circuit judges to reduce the workload. and also, a variety of ways to help promote administrative efficiency. and also, the frequently made claims with the wild and the unpredictable rulings, and even the often cited circuits, this allegedly the most reversed circuit of the supreme court is wildly misleading. giving the sample size to ever reach the supreme court, it is hard to conclude much from the higher reversal race, and the higher rate of reversal that the ninth faces with the supreme court in many generations. indeed, the worst number cited by the critics is 2.5 reversals per 1,000 decisions. what this debate is really all

about is that the conservatives don't like the more liberal rulings that emerge from the ninth circuit. they believe they can manufacturer a new circuit to get other conservative results which is a dangerous matter. like clockwork, we see it with the splitting because of cases whether it is taking the words under god out of the pledge of allegiance or the temporary up uphold stay on president trump's refugee ban, the circuit has long been in the sights of politicians. last night, president trump said at his campaign rally, people are screaming break up the -- and quote, people are screaming break up the ninth circuit, and i will tell you what, that ninth circuit, you have to see. look at how many times they have been overturned with the terrible decisions, unquote, but to manipulate the political ends that you seek is highly inappropriate. just as there is a nationwide

movement to stop the gerrymandering, we should resist this form of gerrymandering as well. proponents of splitting up the ninth circuit will have a vast array of reasons why it must be broken up, but none of the arguments withstand the scrutiny. and the proposals they advanced to solve the alleged harms they cite will not achieve the results they want. any proposed 12th circuit would maintain a significant basis, and all while introducing the uncertainty into the law at great taxpayer expense. while splitting it up is unnecessary and unwise, i appreciate having the opportunity to hear from all of the distinguished witnesses on this issue. i would note that all three of the judges appearing today like a majority of the ninth circuit oppose the split as does the american bar association and numerous practitioners and others who have studied this issue in great depth. i look forward to the judges' testimony, and the testimony of

the other witnesses and i yield back the balance of the time. >> i thank the gentleman. all members may have five legislative days to have the opening statements and other comments placed into the record. without objection, we will waive other ones. before i do that, will recognize the gentleman from texas for the purpose of the unanimous consent. >> thank you, mr. chairman. as a member of the full committee, i ask unanimous consent to include a letter in the record with a attachment as to how the cases would be broken up if it were california in the ninth circuit and all of the other states in the circuit. >> without objection, placed in the record. we have a distinguished panel here today and the witnesses' written statements will be entered into the are record in their entirety and i will ask you the summarize to give your statements in five minutes or less. i will not hold you to it, but the light will indicate that your time has expired.

additionally, excuse me, i want to thank the judges who came and in some cases stayed for the protracted period through the snowstorm to be here today. i know it is a personal sacrifice and i very much appreciate it. before i introduce the witnesses, it is the committee rule that all members be sworn, so would you all please rise, raise your right hand to be sworn. thank you. do you solemnly swear or affirm that the testimony that you will give today is the truth, the whole truth and nothing but the truth? please be seated. and let the record indicate that all witnesses answered in the affirmative. our witnesses today include the honorable sidney thomas, chief judge of the united states court of appeals for the ninth circuit, the honorable

carlos bea, the ninth circuit court of appeals, and the honorable alex kaczynski, circuit judge for the united states ninth circuit. you guys are critical to this of course. and we are also joined by the professor john eastman of chapman university school of law, and professor brian fitzpatrick of the vanderbilt school of law. and with that, we will go straight down starting with you, chief. i think that you have to turn the mic on to see the button in front. >> thank you, mr. chairman, it is a privilege to be here and thank you for the opportunity to testify. i'm syd thomas and it is my privilege to serve as the chief judge of the ninth circuit court of appeals, but my views today are my own. the ninth circuit is effectively and innovatively manage and provides service to the district courts. splitting the circuit would have a devastating effect on the

western united states and cause case delay and cause expensive and unnecessary and wasteful bureaucratic duplication. a circuit split would be costly. under the current legislation proposals the new headquarters in phoenix could cost an estimated $136 million and required renovations in seattle could reach $54 million, and construction for new space for missoula and anchorage and those facilities would have to be staffed year-round, but only used a few weeks a year. a circuit split would result in two clerks of court to staff and executives and staff and the creation of two circuit libraries and none of that expense is necessary. over the past decade, federal judiciary has made a concerted effort to save the taxpayer money by cost containment, and consolidation, and shared administrative services, creating a new expensive

duplicative and less bureaucratic structure would be a giant step in the wrong direction. when this is discussed, much of the focus is on the court of appeals, but the court of appeals is only a small part of the circuit. it includes 14 district courts and bankruptcy courts and pretrial probation offices and these courts do the nuts and the bolts work to affect the largest number of citizens, and circuit divisions would substantially reduce the support for them. we provide support for cyber security, and disability and wellness, and resources, and court policy and many aspects. for example, the ninth circuit provides districts in need. when arizona was in a state of judicial emergency with a skyrocketing criminal docket, we could dispatch visiting judges from within the circuit to solve it. we do it all of the time in the circuit. since 1999 we have made 200 visiting judgeships to arizona,

and 300 to idaho, and 100 to the southern district of california, and 18 judges took cases to resolve 1,500 cases in the california eastern district, and we would not have sufficient judicial resources to mount this effort. the ninth circuit is aggressive in finding ways to save money, and reduce the physical space, and saving the taxpayers clr 7 million in rent, and the capital review process, and the electronic voucher system have saved hundreds of thousands if not millions of dollars and the list goes on, but most of the initiatives would not be possible if the circuit were split because of the lack of personnel and money. on the appellant side, the split could increase the delay and not reduce it. the ninth circuit is known for innovative and effective case management. and for example, the ninth circuit appellant resolved over 4,000 motions and 7,000 fee

vouchers that otherwise would have been assigned to the judges. the staff motions attorneys, and disposed of over 5,000 noncontroversial motions through clerk orders that would otherwise be handled by the judges. on staff presentations, there were almost 1,400 merit appeals, and 1,300 habeas, and the pro se analyzed 5,000 cases for the jurisdictional defects. last year the mediation settled 1,135 appeals, and that exceeded the output of many of the smaller circuits and the year before, around 1,500 appeal, and we have had great success with the mediation efforts. the continuing mediation efforts rising out of the energy cases has resulted in $8.7 billion to be refunded to the consumers and the businesses and the local governments. we have been able to achieve the success, because the ninth circuit has economy of scale,

and critical resources which are lost in the circuit split, and one cannot divide one budget between two circuits to put substantially more tasks on the desks, and significantly reduce the staff support, and expect the faster resolution of appeals to the public. and a division would create more appellant delay, and significantly reduce the support to the jurisdictions and wastefully expensive. can we do better? yes, we can, and we will continue the try, but the best way to effectively administer the justice in the west and keep the justice to the people is to keep the ninth circuit h intact. thank you, mr. chairman. >> thank you. judge bayer. >> members of the subcommittee and mr. chairman, thank you for hearing the subject of the restructuring.

i'm carlos bea and i have been serving since 2003 by my nomination of president george w. bush were confirmed by the senate and my views here today are my own. based on my 13 years on the circuit court, i'm opposed. i would like to talk about the three topics of the advantages of the present circuit and answer a couple of criticisms. first, i point to the great advantage of the business and the professional communities in having a uniform body of law which covers the nine western states and the pacific islands, and it binds the courts and the litigants to the whole western area, and this is minimizing the risk of law and intellectual property, and trademarks for instance, and the maritime trade, and the labor relations, and employment discriminations are in phoenix and seattle, and you could grasp this as an

abstract advantage, and who has standing to sue on the copyright infringement claim is now uniform in washington state home of the microsoft corporation and california home of the google corporation thanks to silver case. whether an employee qualifies as a whistle-blower, whether he has or has not informed the superiors and informed the securities and exchange commission causing the same elements of proof for san francisco and tucson. and mr. newcombe who is the former general manager of the three-time world series champion san francisco giants pointed out the -- >> you have made the case. >> pointed out the practical effect of this predictability in his opposition to splitting the circuit back in 2006. a practical illustration of the advantage of the single western circuit would be the

intellectual property rights and litigation over the last 30 years between microsoft based in seattle and the companies such as apple computer and sun microsoft systems based in the silicon valley. while this litigation proceeded before the trial courts in the northern district of california, we were reassured by the fact that the district court there would apply the same interpretations of the court law because they were all part of the same circuit. the size gives foreign and domestic traders confidence against the perception that they will be hometowned. indeed, the advantage of a large circuit may point to a different sort of restructuring of the appellant courts nationwide which is a concentration of the circuits rather than the disbursal, and the size depends on the size of being framed and

uniformity of tax laws is best achieved by a large circuit. the second reason why i support retaining the present size is that judges who come to circuit with different backgrounds and experience, and this is especially true in environmental law cases where the judgment of someone who has lived and practiced and judged where the trees involved are actually growing or the streams that flow actually are, and the jobs of harvesting the trees and controlling the streams are affected. that helps to determine the analysis and the outcome. this predictable and uniformity of law based on diversity of thought and backgrounds of the judges would suffer under any balkanization. and the most frequently heard criticism is the large geographic size. mentioned by member nadler that

we no longer travel between the circuits on the overnight trains and we don't wait for the postmen to bring us the decisions in the memoranda. so the size of the circuit is not a cause of any delay or any malfunction. also as mentioned by the chief judge, the costs are unnecessary. so in conclusion, you should take into consideration the views of the people on the ground. ask the judges of the ninth circuit if they want to be split, and you will find a very small minority saying should be split. you are overwhelming majority of the people directly involved are against the circuit split and thank you for giving me this opportunity to share my thoughts with you. >> it is my pleasure. judge kaczynski. >> mr. chairman, members of the committee, real honor to be

here, and real pleasure to join my good colleagues chief justice thomas and bayer, and my professor mr. eastman, and my former intern mr. fitzpatrick i thought that he would have learned more, but i will see if i will set him straight. and now i will rely on the written testimony which the burden is the aspect of the hearing that deals with bringing justice closer to the people. which after all, is an objective that we all must share. the bottom line of the testimony is that the ninth circuit is at at the cutting edge of bringing the justice closer to the people for two reasons. one, because it was so large that our courthouses are so much further away for most of the people now in our circuit, and so we have been forced by

necessary to use the advantages of modern technology to bring justice home, to make it accessible. we also have, because we are a large circuit and so many judges, a concentration of resources, unlike other courts who have smaller staffs and then have to duplicate the executive offices, and the clerk offices and the other staff, and we have central staff unify and resources to buy excellent equipment. now, what this means is that if you want a litigant in the ninth circuit, you don't have to travel from honolulu or saipan or billings or fair banks or nome or phoenix to see the arguments in your case. see the judges.

what you can do is to that as long as you can have a computer, you can watch the arguments anywhere in the world and in realtime and see the hearings archived, and we are the only circuit who does that, and the reason is that we have a commitment, and the concept of the open access. we also have a commitment to the idea that we are there to serve the people, and our function is to make it easier and cheaper for parties and the lawyers to take advantages of our resources that we have available. this is a commitment that we share, and this advantage is going to be lost if were a smaller court. the concentration of resources

that we have would be gone. i think that the case speaks for itself and i need not belabor it. and i want to talk about three points in the hearing, chairman goodlatte mentioned collegiality, and i want to reiterate, because when the circuit was split in the fifth, every single judge wrote congress and said that we must be split, but that is not the case in the ninth circuit, with two or three exceptions, literally, a few exceptions of what i have fingers on the right hand, our judges are strongly united under the idea that we should remain a single circuit. this involves judges appointed by different presidents, and whether it is by president clinton or me appointed by president reagan.

and my junior colleague was appointed by president bush. and so that is true of all but two or three. and that should say something to the functionality of the court that the actual people who are involved in operating the court do not believe that the split would be of benefit, and the committee ought not to impugn upon us a fact of collegiality which does not exist. also, the chairman also mention ed the fact that no one has talked about melding the other circuits into others, and so chief judge emeritus cliff wallace has been a advancing the idea for years. mr. chairman, i commend to the committee that other circuits would benefit, and other regions of the country would benefit from having the circuits the size of california.

many circuits like the first, second, third, hardly as large as to serve the state the of california would benefit from being brought together and of course, the fewer circuit conflicts of the supreme court to handle. you said that you would not stop me, but my time is up, and i would like to leave the idea on the table that splitting the ninth circuit is going into the wrong direction, and what this committee needs to be looking at is bringing together smaller circuits to help them to gain the efficiency and the collegiality that the ninth circuit now enjoys. >> thank you. would you put up the map of the combined circuits, please.

there you go. before the next two witnesses, your honor, sips you brought it up, we have the existing circuits including the first, second, third and which are six, 13 and 14 judges and combined would be one less than the ninth circuit will be after the additions. as we go through the remainder i do want to make sure that it is sort of a theme for today as that if the ninth circuit is too big, then the others are too small, and this would be the combination p the ninth circuit were to be left at 34 judges which is what it is recommended to go to, you would have 33-31-31-29 by combining the other circuits, including the first, second, third combined. the gentleman from new york told me that the sophistication of the new york cases might be a

problem for the maine folks, but we will cover that at a later hearing. >> mr. chairman. >> yes? >> if you combine the first, second and third, you would still i assume call it the second? >> we will do whatever the gentleman from new york wants to get his vote. however, professor eastman, on that point of privilege, we will continue. >> chairman issa, thank you and members of the committee thank you for taking up this issue, and i testified before the senate more than a decade ago about the same subject, and the problem is the same as it was then. i was struck by chief justice ment to and judge bae's comments. i am good to hear my friend judge kaczynski talk the same about it. and so for the collegiality, we are not talking about the judges between themselves, because i have a great deal of respect for judges on the ninth circuit, almost all of the judges, and a normal collegiality in the way

we use that word, but this is something more specific, and something that harry edwards described in a law review, the common interest of getting the law right and it is that collegiality that suffers the larger the course goes. we is a lot of evidence for that and testimony to that effect over the years. first circuit judge frank coughlin said that you can talk about old fashioned collegiality when the judges sat with each other. that is the type of the collegiality which can checks the tendencies of some of the judges to fly solo as judge coughlin described. we know the judges on that court. once published that the supreme court can't reverse him all the time, we have an extremely high number of combinations on the ninth tier cut. if you run the math, 3,964 come

combinations of three-judge panels. and add manage the senior judges, it is a whopping 17,296 different combination of the three-judge panels. the judge talked about a uniform law out there in the west, and i practice out there, and it is more like the wild west. my clients ask me what the prediction is going to be on how the ninth court rules on their case. i would say i have no idea, but maybe a better assessment once i see the random draw of the panel. those draws are extraordinarily high in the number of combinations that you might get, and that fosters a coherent body of law. you know, if we do break the circuit up, and we end up with the conflicts on the important issues like the patents that judge bayer talked about, we might add some cases back to the supreme court docket, because some have complained it is too light, and so maybe that is a good thing. what i am looking for is the

ability to get the law right. extraordinary number of opinions that come out, it is hard for the practitioners to stay up with everything that is going on in the court, and i know that it is hard for the judges as well. that necessarily creates intracircuit conflicts, and often times in the nuance situations that manifest themselves for years or decades, because of the large size. as the white commission reported, consensus of the appellant judges throughout the country, and including a third of the ninth circuit judges, a while ago thought that the court of appeals, being a court whose members must work collegially overtime functions better with fewer judges than currently authorized for the ninth circuit. the white commission concurred that the optimal size of the court is 7 to 17 which is roughly half of the size that we have now on the ninth circuit. it is not just the reversal

rate. i want to take it up, because my colleague will talk about the statistics on the reversal rate. as judge posner pointed out, the ninth circuit had the highest summary reversal rate by far than any other court in the country. that is the outliers and the judges that can fly solo, and go unchecked with the lack of familiarity, and the meetings with each other. it is six times as high as the next sir can cut. and so judge joe scanlon who i understand it submitted the written testimony to court, and i hope it is going to be entered into the records notes that 1 of 10 of the decisions taken up by the supreme are summary are rejected and with know that the court is ideologically divided and that means that there is something going on, and outlier effect, and judges flying solo on the ninth circuit which does

not exist on the other courts of appeals. it is correlated and perhaps caused by the size of the court. thank you very much. >> thank you. professor fitzpatrick. >> mr. chairman and committee -- thank you so much. >> the gentleman will remember, your old mentor is there. you want to at least strike some balance of what you remember him teaching you as you dispel what his opinion is. >> well, yes, i thank you for having me, mr. chairman, and i was an exintern for the judge kaczynski, and clerked for his colleague judge scanlon. and the ninth is a fine circuit, but i believe that there are finerer is cuts if we split it. benefits to splitting it. i have no question that if we create another circuit, we have to spend more money to create

another administrative apparatus. but there are benefits to splitting the ninth circuits as well and the benefit today that i want to talk about is thele alluded to by my colleague mr. eastman here. if we go to the smaller districts, we are reducing the number of outlier decisions that the courts make. and when i say outliers, i don't mean it in a conservative way. smaller courts will lead to fewer outlier decisions. first, talk about the ninth circuit's reversal rate. this is good evidence that the ninth circuit is issuing more outlier decisions. it is disputable that they have highest reversal rate of any court of appeals in america and it has been that way for many, many decades. when people dispute the number as chief justice thomas did in the testimony, they talk about the win-loss rate at the supreme

court, and given to the cases that the supreme court has chosen to review, the ninth circuit win/loss is sometimes the best and sometimes the worst, but it is not how the serious empiricists and scholars measure the reversal rate. captions copyright national cable satellite corp. 2008 captioning performed by vitac